18 September 2018
In a landmark judgment on 6 September 2018, the Supreme Court of India decriminalised homosexuality.
The decision in Navtej Johar v Union of India was the culmination of years of tireless campaigning by LGBT rights activists in India. This article seeks to provide an overview of the road to that led to this judgment, alongside some interesting themes emerging from the decision of the Supreme Court.
Background: The Indian Penal Code of 1860
There is a widely-held view that, prior to the colonisation of India, same-sex relationships were not frowned upon. The source of the prohibition on homosexuality is the Indian Penal Code, enacted in the 1860s by the government of the British Raj. It is thought that the ban enacted by the British represented an attempt to ‘civilise’ the Indian population through the imposition of Victorian standards of morality
The provision in question, section 377, simply states:
Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The Indian Constitution
Following independence in 1947, the Constitution of India became effective in 1950. It created a system in which laws deemed to be incompatible with the Constitution could be struck down by the Supreme Court. In this sense, the Indian Constitution is similar to the US Constitution, and differs from the UK constitutional model.
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2 August 2018
NHS Trust v Y (by his litigation friend, the Official Solicitor) and Others, Supreme Court 30 July 2018 – read judgment
The question for the Court was a simple but important one: whether the permission of a court was always required by law before doctors could withdraw feeding from a person in a persistent vegetative state.
The patient at the heart of this case, known only as Y, had been an active man in his 50s before suffering a cardiac arrest which led to severe brain damage. He never regained consciousness and needed to be fed through a tube (known technically as “clinically assisted nutrition and hydration” or “CANH”) to stay alive.
Doctors had determined that Y was suffering from a “prolonged disorder of consciousness”known as “PDOC”.PDOC covers those who are in a persistent vegetative state and also those in a minimally conscious state, what we might informally call a coma.
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10 July 2018
It was reported on Thursday, 5 July 2018, that three core participants in the Undercover Policing Inquiry are intending to launch a legal challenge against the Home Secretary’s decision not to appoint a panel to sit with the Chair, Sir John Mitting.
They say a diverse panel is needed who will better understand the issues of racism, sexism and class discrimination that the inquiry will inevitably raise. So where has this challenge come from, and is it likely to succeed?
Three years ago, Home Secretary Theresa May announced the establishment of the Inquiry, amid great controversy concerning the conduct of undercover police officers over a number of decades. Lord Justice Pitchford was appointed as chairman, but as a result of ill-health, he had to step down in 2017 and was replaced by Sir John Mitting (a judge of the High Court).
Mitting J has experience of surveillance and the security services, having been Vice-President of the controversial Investigatory Powers Tribunal and Chairman of the Special Immigration Appeals Commission.
However, his chairmanship of the inquiry has been mired in dispute, starting with a series of decisions to grant anonymity to many officers because public disclosure of their real names would breach their Article 8 rights to private and family life. Some had also raised concerns about Mitting J’s membership of the all-male Garrick Club.
Compounding matters, at a hearing on 5 February 2018, Phillippa Kaufmann QC, counsel for the victims (who had core participant status at the Inquiry), made the point that it was impossible to rule out wrongdoing, including deceptive sexual activity, on the basis of an individual’s personal or family circumstances. Mitting J responded:
Of course it is impossible to rule it out, but you can make a judgment about whether or not it is more or less likely. We have had examples of undercover male officers who have gone through more than one long-term permanent relationship, sometimes simultaneously. There are also officers who have reached a ripe old age who are still married to the same woman that they were married to as a very young man. The experience of life tells one that the latter person is less likely to have engaged in extramarital affairs than the former.
The comments were not well received and, later in the hearing, Mitting J acknowledged that he “may stand accused of being somewhat naive and a little old-fashioned” but that he would “own up to both of those things” and would take it into account and revisit his own views.
At the next hearing, on 21 March 2018, Ms Kaufmann made a number of submissions criticising the inquiry:
The first concerns the failure to ensure that the Inquiry is heard by exactly that, a panel representing a proper cross-section of society and in particular — and this is absolutely essential for reasons I’m going to come to — including individuals who have a proper informed experiential understanding of discrimination both on grounds of race and sex. Two issues that lie absolutely at the heart of this Inquiry. I’m sorry to say this, but instead we have the usual white upper middle class elderly gentleman whose life experiences are a million miles away from those who were spied upon. And the very narrow ambit of your experience is not something I’m simply creating out of thin air. It has been exemplified already in the way that you have approached these applications.
She then referred to Mitting J’s comments at the February hearing and concluded by inviting him to either recuse himself or appoint a panel to sit alongside him. She then walked out of the hearing, accompanied by her legal team and the core participants.
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